BEFORE THE UTAH STATE TAX COMMISSION
Petitioners, : ORDER
v. : Appeal No. 94-0227
AUDITING DIVISION OF THE : Account No.
UTAH STATE TAX COMMISSION, :
: Tax Type: Income
Petitioner, herein, has filed a Motion for Order of Dismissal on the grounds that he was not given sufficient time to file his Petition for Reconsideration with the Commission.
The Petitioner acknowledges that the Findings of Fact, Conclusions of Law and Final Decision were mailed to Petitioner on XXXXX, but alleges that he did not receive it until XXXXX. However, Petitioner does not allege that he did not receive it because of any fault of the Tax Commission, or whether it may have been because Petitioner was out of town or for any other reason attributable to Petitioner. Nevertheless, an Order was signed granting the Petitioner an additional ten (10) day period in which to file a Petition for Reconsideration. However, Petitioner chose to not file such a Petition for Reconsideration, but instead to file a Motion to Dismiss.
Section 63-46b-13, Utah Code Annotated, provides that the twenty (20) days for requesting a reconsideration is after the date an Order is issued, and not after the date when the Petitioner receives the Order. Further, the Commission deems all notices to be effective immediately upon their execution and mailing. However, even Rule 6 of the Utah Rules of Civil Procedure provides for only an additional three (3) day period when service occurs by mailing. The Commission determines that the Petitioner had sufficient time in which to file a Petition for Reconsideration, and further determines that the Petitioner had ten (10) days longer than were granted to him by state law.
While Petitioner has requested that the case be dismissed, the Commission believes the Petitioner does not understand the significance of his request. This matter is based upon the appeal of Petitioner, and if he does not want it to go forward, then he may simply withdraw it at his own request. However, such a withdrawal, or the granting of a Motion to Dismiss, would not terminate the audit assessment made by the Auditing Division. Further, because the Commission has previously issued a final decision in this case which was not timely appealed and for which a timely Petition for Reconsideration was not filed, the Commission does not have any further jurisdiction to act in this case. The only issue still before the Commission is the collection of any amounts determined to be due to the Commission. To the extent the Commission may have any remaining jurisdiction, the Motion to Dismiss filed by the Petitioner is hereby denied.
DATED this 11 day of April, 1996.
BY ORDER OF THE UTAH STATE TAX COMMISSION:
W. VAL OVESON, CHAIRMAN ROGER O. TEW
JOE B. PACHECO ALICE SHEARER